Symposium Between Talmud and Torah: The Law of Talionis Baba Kamma 83b Mishna already given the value of his hand or the value of his leg [under "depreciation"] "Deg­ One who injures a fellow man becomes liable radation"—is figured entirely according to to him for five items: for depreciation, for who is offended and who causes the offense. pain, for healing, for loss of time, and for degradation.* How is it with "depreciation"? Gemara If he put out his eye, cut off his arm, or broke his leg, we consider him [i.e., the injured Why [monetary compensation]? God said person] as if he were a slave being sold in the "An eye for an eye"[Exodus 21:24]: Why not market place, and a valuation is made as to take this literally?—Not so; since it has been how much he was worth [previously], and taught: Is it the case that where he put out his how much he is worth [now]. "Pain"—if he eye, we put out his /"i.e., the offender's] eye, or burnt him either with a spit or with a nail, where he cut off his arm, we cut off his arm, or even though on his [finger]nail which is a where he broke his leg, we break his leg? [Not place where no bruise forms, we estimate so, for] Torah states: "One who strikes a how much a man similar to him would want human being...and one who strikes a beast..." to be paid to undergo such pain. "Healing"— [Leviticus 24:21][teaching that] just as in the if he has struck him, he is under obligation to case of striking an animal compensation is to heal him. Should ulcers [meanwhile] arise, if be paid, so also in the case of striking a man as a result of the wound, he [i. e., the offender] compensation is to be paid. And should this is liable, but if not as a result of the wound, [source] not satisfy you, note that the Torah he is exempt. Where the wound was healed states: 'You may not accept ransom for the life and reopened, he is still under obligation to of a murderer who is guilty of a capital crime; heal him. If, however, it had completely he must be put to-death," [Numbers 35:31] healed, [and subsequently reopened], he is [teaching that] it is only for the life of a mur­ not obligated to heal him. "Loss of time"—we derer that you may not take ransom, whereas consider him [Le., the injured person] as if he you may take ransom for principal limbs, were a watchman of a cucumber; for he has which do not restore themselves. To what [two textual instances of] strikes does it [i.e., the 'Translated from the Hebrew by Ari Ackerman and Zvi Zohar of the Shalom Hartman Institute in Jerusalem. Bold baraita] refer? Should you say [that it refers] text is biblical verse; italic text is baraita. Bible verses follow the New Jewish Publication Society translation (1985). to "One who strikes a beast shall make res- Vol 2*No 1*1991 45 Baba Kamma 83b S'VARA titution for it; but one who strikes a human of injury, rather than to derive [the law of] being shall be put to death" [Leviticus injury from [the law governing the case of] 24:21]—this verse refers [not to injury but] to murder. But the contrary could be argued murder. The reference must therefore be to [with no less force]: it is proper to derive [the this text: "One who strikes a beast shall make law of injury inflicted upon] man from [an­ restitution for it: life for life,"[24:18] which other case of attack upon] man [i.e., murder] is immediately followed by "If anyone maims rather than to derive [the law of injury in­ his fellow, as he has done, so shall it be done flicted upon] man from [the case of injuring to him [a break for a break, an eye for an eye, an] animal! Precisely [to resolve] this was the etc.][24:19]. But [the term] "strikes" is not point of the statement "Should this [source] used [in the latter text]?—the baraita is com­ not satisfy you, note that the Torah states:You paring [not the term but the] events of strik­ may not accept a ransom for the life of a mur­ ing; just as the "striking" mentioned in the derer who is guilty of a capital crime; he must case of an animal entails monetary payment, be put to death,' [Numbers 35:31][teaching so too does the striking of a man entail mon­ that] it is only for the life of a murderer that etary payment. you may not take ransom, whereas you may But surely it is not written: "If anyone kills take ransom for principal limbs, which do not any human being, he shall be put to restore themselves." death"?![24:17]—this refers to monetary But was the purpose of "You may not compensation. On what grounds [do you take accept a ransom for the life of a mur- it to refer] to monetary compensation? Why derer"[35:31] to exclude the case of principal not say that it really means capital punish­ limbs? Was it not intended to indicate that ment?—Not so; first, because it is im­ God says, Do not make a culprit subject to mediately followed by "One who strikes a two [punishments], that is, that you should beast shall make restitution for it" [which not together take from him monetary com­ refers to monetary payment][24:18], and fur­ pensation and put him to death?—[No;] That thermore, because soon after it is written "as is derived from the verse, "as his guilt war­ he hath done so shall it be done to him" rants,"[Deuteronomy 25:2] [which indicates [which once again refers to money][24:19] that] you can make him liable only for one thus proving that it [i.e., "so shall it be done"] punishment for one crime, but cannot make means monetary compensation. him doubly liable for one crime. But why the statement, "Should this But still, was this verse not requisite to [source] not satisfy you"? [Why should it not teach [its plain meaning;] that God forbids satisfy you?]—The difficulty which further you to take from him monetary compensa­ occurred to the Tanna was as follows: What tion and release him [from the capital pun­ is your reason for deriving the law of a man ishment]?—If so [and that was all the verse injuring a man from the law governing the intended] God would have written, 'You case of a man injuring an animal? Why not may not accept a ransom for the life of a derive it from the case of a man killing a murderer,"[Numbers 35:31] why then write man!? To this one might answer: It is proper "for the life of a murderer"?—to indicate that to derive [the law of] injury from other cases it is only for the life of a murderer that you may 46 Vol 2*No 1*1991 W A Journal of Philosophy and Judaism Baba Kamma 83b not take ransom, whereas you may take ran­ should monetary compensation be taken [but som for principal limbs, which do not restore in all other cases, one should literally put out themselves. Now that 'You may not accept a the injurer's eye]. [To that reply we answer:] ransom" [implies all this], why do I require Did not the Torah state, 'You shall have one [the section of the baraita regarding] standard" [24:22] implying that the standard "strikes...strikes"[Leviticus 24:21]? Be­ of law should be the same in all cases? cause, if [only] that verse [existed], I might But, what is the difficulty even in that case conclude that [it is optional:] if he wishes he [of a large eye and a small eye]? Why not say, must [literally] return an eye, and if he wishes that for eyesight taken away the divine law he must return the value of an eye; we there­ ordered eyesight to be taken away from the fore are informed by [the case of] an animal offender? [84a] For if you will not say this, that, just as the striker of an animal must pay how could capital punishment be applied in money, so too the striker [i.e., injurer] of a the case of a dwarf killing a giant or a giant man must pay money. killing a dwarf, seeing that the Torah says, It has been taught: R. Dosthai b. Judah 'You shall have one standard" implying that says: "An eye for an eye"means monetary com­ the standard of law should be the same in all pensation. You say Monetary compensation"; cases—unless you say that for a life taken but perhaps it is not so, but actually [putting away Divine Law ordered the life of a mur­ out his] eye is meant? What then will you say derer to be taken away? Why then not simi­ [in a case] where the eye of one was large and larly say here too that for eyesight taken away the eye of the other small—for how can I in the Divine Law ordered eyesight to be taken this case call it "an eye for an eye"? You might away from the offender?53 reply: Only in such a case [of unequal sizes] Vol 2*No 1*1991 47 Dialogue between a Philosopher and a Talmudist Y: There are big issues in this section, aren't Y: I think you might be right.